Michelle Lensink

Liquor Licensing (Miscellaneous) Amendment Bill

A debate between the Hon. J.M.A. LENSINK and the Hon. G.E. GAGO regarding the Liquor Licensing (Miscellaneous) Amendment Bill.

In committee.

(Continued from 22 June 2011.)

Clauses 2 and 3 passed.

Clause 4.

The Hon. G.E. GAGO: I move:

Page 3, lines 13 to 22 [clause 4(2)]—Delete all words in subclause (2) after 'delete the definition'

Essentially, this amendment deletes the definition of 'extended trade'. It is proposed instead to set out the trading hours available for each class of licence in the relevant sections—sections 33 through to 36 and 40. This is achieved in amendment No. 7. This is designed to make the rules about the hours simply easier to comprehend, so it is a minor administrative amendment.

The Hon. J.M.A. LENSINK: Minister, is this amendment in relation to reviews of management plans or is this rewrites of clauses?

The Hon. G.E. GAGO: No; this is the definition of 'extended trade'; setting out the trading hours, sections 32 to 36.

The Hon. J.M.A. LENSINK: Mr Chairman, if you will excuse all honourable members in the proceedings of this legislation, because we have minister's amendments, my amendments to the minister's amendments and my amendments to the act, and we have had redrafts. If we do not get confused, I shall be very surprised. I understand that these amendments to the government's redraft of existing clauses within the Liquor Licensing Act are contained within different sections, therefore they will restructure it such that it is much easier to follow, so we will be supporting these particular amendments.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 3, after line 22—After subclause (2) insert:

(2a) Section 4, definition of extended trading authorisation—delete 'means a condition of a licence specifically authorising extended trade in liquor' and substitute:

See section 44

This amendment amends the definition of extended trading authorisation by referring to a new section, which is the subject of a later government amendment, amendment No. 11 [Gago-4]. Similar to the previous amendment, due to the revised way that we have given effect to extended trade, this section now needs to be deleted.

The Hon. J.M.A. LENSINK: I understand that this amendment is consequential. I note that the existing definitions of extended trade in liquor apply between midnight and 4am on any day and that there are standard trading hours which apply from 7am to midnight. This is how the act has been drafted, which, for the novice, can be very confusing indeed. However, I note that this particular amendment is part of a suite that will help to simplify that, therefore we are supporting it.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Page 3, lines 23 and 24 [clause 4(3)]—Delete subclause (3).

This is the first reference in the bill to management plans, and it will be a test clause for a number of other amendments in this regard. The concept of management plans is not something that we oppose per se. One of the big concerns in relation to a number of the amendments that the government has to the Liquor Licensing Act and the liquor licensing bill is that management plans will be used as a means of enforcing certain conditions on the licensees. The greatest offence in this regard is that there is no right of appeal for licensees for management plans which are imposed by the commissioner. So, a number of amendments which I have had drafted refer to management plans and delete all those references, and a number will be consequential; however, I will treat this as a test clause.

The Hon. G.E. GAGO: The government opposes this amendment. This amendment removes the definition of management plans. Currently the Office of the Liquor and Gambling Commissioner (OLGC) participates with a number of councils, police and licensees in the development of liquor licensing accords and precinct management groups. The aim of these groups is to develop initiatives that promote the responsible service and consumption of alcohol in a specific area. These groups facilitate a forum in which issues relating to the responsible sale and supply of liquor can be discussed.

The difficulty that the commissioner has, however, is that these accords and precinct management groups are only goodwill, or voluntary, agreements. Participation in them is not mandatory and the membership in them does not require adherence to a consistent set of licence conditions.

From time to time, there may be instances where the commissioner becomes aware of serious issues relating to the sale and supply of liquor in a particular precinct or area that is putting the safety and wellbeing of the community at risk. The concept of the commissioner's management plan is the government's answer to that problem.

These plans would be a mechanism by which a group of premises in a particular area could be subject to a consistent set of licence conditions in a bid to having a real impact on public order or safety issues in that area, in particular through measures designed to reduce alcohol-related crime and, obviously, antisocial behaviour, which is the whole point of this bill.

The management plan could contemplate the imposition of a range of conditions under section 43 of the act; for example, a requirement to use polycarbonate glass, implement a lockout or maintain CCTV equipment. We saw the problem with lockouts, the failure to implement lockouts in the Hindley Street precinct, because one licensee refused to participate and, of course, if one refused to participate then it brought the whole thing undone.

Yet, we know that lockouts have been very effective in managing problems on a street in other jurisdictions, even in South Australia. I think we have had some success where there has been that cooperation, but at the moment it relies on voluntary cooperation. We are not able to require licensees to participate in lockouts and, as I said, if it is not all in then it does not work.

So, a plan may be applied to a specific licence type, such as, for instance, late trading venues or specified licences in a particular geographical area, precinct or community. As distinct from accords, management plans could be enforced through the imposition of licence conditions and thus compliance with these plans' conditions would be mandatory and any breach of conditions would then result in disciplinary action that could be taken against the licensee.

The proper checks and balances are being allowed for the bill, relating to plans. In the development of a plan, the commissioner would be required to consult with affected licensees, and interested persons are to be given reasonable opportunity to make written submissions in relation to the plan. The plans would be kept available for inspection, free of charge, on a website and at a principal office of the commissioner during normal office hours. Management plans would be kept under review by the commissioner.

Management plans are an important component of a suite of measures that the government is seeking to put forward in an attempt to improve public order and safety in and around our licensed venues. Not going forward with these management plans in the bill would mean that the commissioner would be less equipped to manage the long-term alcohol-related crime and antisocial behaviour in an area or precinct.

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting this amendment. In support of that position, I would say that accords are very good things. In fact, management plans are also very good things, but the ability not to be able to appeal against a management plan being implemented not only goes against natural justice, it also goes far beyond anything that would be effective in terms of working with this industry.

The commissioner already has quite significant powers and we have heard in the second reading debate of this bill that they are not currently used. We have other measures coming up, such as expiation fees for offensive and disorderly conduct and so on, which we hope will be quite effective in addressing some of the alcohol-related harm and violence that obviously is the concern of this original clause.

However, what I would say is that the Strathmore should not be treated the same as, say, the former Mile High Club or the Black Rose. Although they are in the same precinct and they have similar licences, they are very different venues. This approach of a blanket management plan does not recognise that and it does not reward the good venues; it simply punishes all venues for the behaviour of the worst venues.

The Hon. G.E. GAGO: I need to correct the Hon. Tammy Franks. The management plans are appealable. They are inserted into section 43 and are appealable to the Licensing Court, so natural justice is afforded to licensees. As the Hon. Tammy Franks has rightly pointed out, the same condition should not necessarily apply to every single venue. The commissioner is aware of that and if he does get that wrong it is appealable—the Strathmore or whatever can appeal to the Licensing Court to have that decision reviewed.

The Hon. Tammy Franks says that there are other mechanisms available. There is a suite of provisions that we have put forward but none that deal with the ability to coordinate a collective response in relation to a specific issue in a particular area, so this is a very highly effective and efficient way to do that. For instance, in some regional areas we have seen accords dealing with half-strength alcohol and the serving of non-resident Aboriginal members. Again, that is a completely ineffective strategy if one licensed venues decides it does not want to cooperate and sells alcohol outside of that accord.

Again, these strategies are put in place to manage very specific problems that local communities have. It is absolutely about the commissioner working with local communities and key stakeholders in the same way that he does with the accords, but currently the accords are voluntary and it only takes one licensee to not cooperate to bring the whole thing undone—and then the whole thing is worthless.

This gives strength to that. I have satisfied the honourable member about the natural justice on an appeal, so I am sure the honourable member will now reconsider and support management plans.

The Hon. T.A. FRANKS: I indicate that the honourable member has some questions but is not convinced. In terms of appealing to the Licensing Court, what would be the typical time frames and the typical costs to a licensee for that?

The Hon. G.E. GAGO: In terms of costs, we would have to take that on notice; we do not have those figures available. In terms of timing, that is variable—it varies from a matter of days to a matter of months, as I have been advised. I am also advised there is the capacity for an injunction order to be put in place so that, for instance, the plan not be applicable whilst the matter is before the court. Again, there are a number of natural justice measures that are available to ensure that the interests of licensees and other relevant stakeholders are protected.

The Hon. J.M.A. LENSINK: I would just like to endorse the remarks of the Hon. Tammy Franks, particularly in relation to support for accords. I think they are very useful mechanisms to get all stakeholders together in the same room. I think the concern of a lot of licensees is that it is a bit of a one-way street, and suggestions that they might have where either local or state government could improve some of the conditions are not always reciprocated. Yet, the enforcement powers rest with the state government to impose conditions on them, and I think that is somewhat unbalanced.

The minister has referred to the issue of licensees having an appeal mechanism. That is all well and good, but I think in practicality, and certainly from some of the examples that the Australian Hotels Association has provided to me, some of these licensees do spend considerable time fighting fairly vexatious matters that have been brought on them by the OLGC.

I think some of the information that the OLGC and the minister have is incorrect, and if I can just refer to a letter from the Australian Hotels Association that they wrote in June in relation correcting some of the comments in second reading speeches. The letter states:

The minister's repeated emphasis on six venues being impacted by the compulsory shutdown between 4 and 6am is just plain wrong. Even a cursory check of the OLGC website shows that there are in excess of 30 venues in Hindley Street that trade either pursuant to Hotel License, Special Circumstances License or Entertainment Venue License that can trade during that time.

So, I think it is important that the government does get its facts right and that, in the meantime, the vast majority of licensees who are law-abiding and do seek to obey the codes of practice, any of the statutes and any of the conditions of their license do so, rather than being at the whim of conditions that the commissioner may impose on them. Correspondence from the AHA further states that they are concerned that:

...the proposal is silent on how the Commissioner proposes to give notice of the intention to develop a management plan, and how licensees and interested persons would be notified of the intention to develop a management plan.

I think, in theory, the management plans sound like they might be reasonable, but I think that in a practical experience—and certainly given the experience of a number of licensees—they will just add another layer of bureaucracy which is unnecessary.

The Hon. G.E. GAGO: I want to respond to a number of issues that have been raised. I just want to remind honourable members that, in relation to the Licensing Court, a licensee is not required, necessarily, to have legal representation, so that does help reduce costs for simple matters. In relation to some of the comments of the Hon. Michelle Lensink, I would ask her to put on record the examples that she has received of vexatious issues pursued by the Licensing Court. I have been engaged in extensive consultation with a wide range of industry stakeholders.

To the best of my memory, I am not aware of vexatious issues being pursued by the Licensing Court. I know that the AHA has expressed that it has had some issues with the Licensing Enforcement Branch of SAPOL but not with OLGC nor with the Licensing Court that I am aware of. Again, I ask the Hon. Michelle Lensink to put on the record the examples she referred to in relation to vexatious issues pursued by the Licensing Court or OLGC.

The Hon. J.M.A. LENSINK: I did not refer to the Licensing Court making vexatious claims, because it is the appeal body, so that would not make sense. In relation to the OLGC, I have certainly heard of licensees being fined for people who may be standing on the footpath, or what may form part of a footpath. For instance, if you go to The Gov or any licensed premises—

The Hon. T.A. Franks: The Metro.

The Hon. J.M.A. LENSINK: The Metro; thank you—which has a footpath, you can see distinctive signs. I remember having a few beers at The Gov with my husband and some of his mates last year. They were laughing at this sign, which said that you were not allowed to be out there with a drink unless you were seated at a table. So, you have to make sure that there are enough chairs for everyone. If there are five of you and there are only four chairs available, you either have to go inside or one of you has to be Nigel No-friends and go inside.

There are other issues with licensees being pinged for people not having their badges the right way round or, I think, list of lodges is another one that is regularly cited. There is one particular case, which I will endeavour to ask the AHA whether it will provide for me, which is a real monte and which I understand is before the Licensing Court at the moment. They are just some of the examples where I think it is unreasonable.

The difficulty that licensees have is that they are always the ones who are always held responsible, yet it is the behaviour of their patrons, and sometimes the unknowing behaviour of their patrons, not knowing what the laws are. There may have been some kernel of sensible reason for laws being in place, but I think they should be enforced reasonably.

The Hon. G.E. GAGO: I think the honourable member is confused. We need to stick to the point, and the point is about the appeal rights to the Licensing Court in relation to management plans and the innuendo that somehow the Licensing Court may pursue vexatious claims.

The Hon. J.M.A. Lensink: I never mentioned the court.

The Hon. G.E. GAGO: That is what we are talking about. We are talking about the appeal rights of licensees in relation to management plans. That is the issue.

The Hon. J.M.A. Lensink: No; it was more than just that issue.

The Hon. G.E. GAGO: That is what this amendment is about, and we need to stick to the issue, because that is what is before us. Just to tidy up, in relation to the footpath issue the honourable member talks about—the fines for people on footpaths—I am advised that that is a result of SAPOL issuing expiations for breach of licence conditions put on licensees, in consultation with council, for the safety of users of the footpath.

Again, I am aware of issues around SAPOL, but the issue we are dealing with is the appeal rights of licensed venues in relation to management plans. There is nothing before us to suggest that the current appeal mechanisms do not provide clear natural justice to those available to receive those protections. I have put on record before, so I have been quite clear about this. Again, as a point of clarification, in relation to the number of venues, many liquor licensees across the state have authorisation to extend their trade beyond the standard hours, for example, after midnight.

The OLGC is unable to determine—and I have put this on the record before—how many venues actually trade between the hours of 4am and 7am because individual venues determine themselves the extent to which they utilise this authorisation. For example, some may never use it; some may use it only once a week; and some may only use it, for instance, during the summer months. This information can only be obtained from the individual businesses themselves. They are not required to report on it, I am advised, and are not required to make public that information.

I have been quite clear that, in fact, that information is not available. However, the OLGC is aware of six venues in the Hindley Street area, including West Terrace, that are authorised to trade for 24 hours. The OLGC is also aware of approximately 40 venues statewide that operate gaming operations between 4am and 7am. Again, I can only clarify that I have put that on the record before and I still stand by that information.

The Hon. T.A. FRANKS: There were several concerns that I expressed, not simply the natural justice that licensees can avail themselves of. However, your response that licensees are not required to have representation during these procedures does not give me great comfort. Do you have the percentage of cases where a licensee with representation is actually successful compared to where a licensee is without representation? In those cases where the licensee does have to take representation are court cases in fact awarded in terms of the amount of money that they have to go and pay to get that representation? Are considerations taken into account of a licensee having to give up time working in their venue in terms of preparation of the case?

You also say that should a venue wish to appeal one of these management plans that, in fact, the management plan could not be implemented until an injunction order could take place. What time frame would the minister imagine might be involved there? The other example you gave in your first response that does concern me—and I think you were probably referring to the Port Augusta region, although I could be wrong—is that, for example, the management plan might contain the provision to only serve half-strength or light alcohol to Aboriginal people. Does the minister imagine that this might be a standard feature of management plans across the state or is that simply an example erroneously clutched at?

Finally, another example of management plans might be polycarbonate cups. Of course, that would work in some venues but it certainly would not work in a venue, as I say, on Hindley Street that had a high-end market clientele that was buying fine wines. How would that work if a polycarbonate cup was part of the management plan for evening trading hours—say, The Apothecary as compared to Red Square?

The Hon. G.E. GAGO: In terms of the questions around specific numbers, obviously we do not have that level of detailed information here at present. I am happy to take them on notice. Those sort of cases where licensees choose not to be represented are obviously very minor cases where they—

The Hon. T.A. Franks: Okay, so that's not a plus, is it?

The Hon. G.E. GAGO: Pardon?

The Hon. T.A. Franks: That is then not a very good defence of your original argument.

The Hon. G.E. GAGO: I am just answering the question. Licensees can choose whether they have representation or not and can choose whether they believe they need it or not—it is their choice. It is a system that has worked very well in the past. I think the honourable member has really made up her mind and she has been caught out. She thought she had the big guns blazing with the fact that there were no appeal rights, and now we have shot that down, so now we see this plethora of quite minor distracting questions. We need to move on. It is obvious the honourable member has been caught out. She does not support management plans and has no intention of supporting them. Appeal rights have got nothing to do with it. She has made up her mind, and we just need to move on.

The Hon. J.A. DARLEY: I will support the opposition's amendment.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Page 3, after line 24—Before subclause (4) insert:

(3a) Section 4—after the definition of meal insert:

offensive or disorderly—without limiting the conduct that may constitute behaving in an offensive or disorderly manner, the conduct may be constituted of offensive language;

This amendment is to include within the definition section of the act that 'offensive or disorderly' includes offensive language, which we think is an important addition to include people mouthing off, which can actually be quite provocative. The issue that a number of people would be concerned about—and this applies to the expiation amendment which we are supporting—is that mouthing off or swearing at people can be a precursor to the outbreak of violence, and therefore we think it ought to be part of the definitions, so if that behaviour is exhibited it can attract an expiation.

The Hon. G.E. GAGO: The government supports this amendment, which make explicit that conduct that is offensive and disorderly may involve offensive language. Fundamentally we do not think that this amendment is actually necessary because we think it is obvious that offensive and disorderly conduct includes the use of offensive language. It seems odd to pick out this one particular behaviour to be included in the definition when a whole raft of different behaviours can be covered. We find it odd that this one is picked up. Nevertheless, although I am advised this amendment is unnecessary, I do not think that it either adds or detracts from our provision, so therefore we will not oppose it.

The Hon. J.M.A. LENSINK: In the Summary Offences Act, section 7, there is a fine and imprisonment term of three months relating to the use of language, so it harmonises with what exists already in other statutes.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. G.E. GAGO: The government maintains its position to exempt the Casino—other than, of course, North restaurant—from the mandatory break in trade. This is going to be addressed in a later government amendment, therefore we believe it is dealt with elsewhere.

The Hon. J.M.A. LENSINK: We are supporting the government. I have indicated to interested parties that we are not supporting the Green's amendment. We think that the four to seven closure is bad policy for everyone. We do not think that the Casino should be included in the regime.

Clause negatived.

Clause 6 passed.

The Hon. J.M.A. LENSINK: I move:

Page 4, after line 17 [clause 6]—Insert before the present contents of clause 6 (to be designated as subclause (2)):
(1) Section 11A(2)—after paragraph (f) insert:
(fa) to impose special requirements for the sale of liquor for consumption on licensed premises between 4 am and 7 am on any day for the purpose of reducing alcohol-related crime and anti-social behaviour;

Examples—
Measures prohibiting the supply of liquor for consumption on any part of the licensed premises comprised of a footpath or other outdoor area.
Measures requiring security to be provided by means of closed circuit television or similar electronic surveillance and the retention of recorded images.
Measures requiring the presence of an authorised person performing the duty of promoting responsible attitudes in relation to the sale, supply and consumption of liquor as his or her principal duty.
Measures prohibiting the sale of liquor in a form that may encourage rapid or excessive consumption of liquor.
Measures prohibiting the sale of liquor in glass containers in circumstances of high risk.

Measures requiring incidents to be recorded in a register that will be made available for inspection by authorised persons.

This clause takes a concept, which is in the government amendment No. 12, proposed section 44A(3) and outlines a number of potential measures which may be included as conditions of trade between 4am till 7am as codes of practice.

I advise honourable members that we are vehemently opposed to the government's clause 12. This is an alternative to provide that a similar set of conditions can actually be in codes of practice. We believe that codes of practice are a more appropriate place for these conditions because, first of all, if you have these conditions in an act of parliament, it does not allow for rapid changes to be made. Codes of practice are updated on a regular basis. They are a disallowable instrument and they are made in consultation with industry; therefore, we believe they are the most appropriate place to be located.

The Hon. G.E. GAGO: The government supports this amendment; however, it is qualified support. It is clear through second reading contributions and discussions I have had with my colleagues here in the chamber that we do not have support for the mandatory break in trade between four and 7am, so we understand that, when we get to that section, that will be lost.

We believe that providing some additional conditions on licensees who do trade between those hours is sort of a second-best option. It at least affords some increased protections to the general public in enabling there to be additional requirements or additional standards and protections put in place. So, we certainly support that notion.

We are disappointed that the honourable member seeks to do it through the code of practice. Obviously, the government would like to see it have much greater powers than that. The government's preferred position is that it be put into the act, not the code of practice, because the code of practice is something that the commissioner may have, and the conditions may or may not apply. Also, these matters can be disallowed as well. So, it means that there is a potential for these protections to be watered down considerably.

The government's preferred position is obviously for a mandatory break in trade; however, given that that appears to be lost, we would prefer these additional conditions to be placed within the act so that the act will require the commissioner to place conditions on those licensees operating between four and seven. There would then be discretion about which conditions may or may not apply. We clearly do not have support for that. Again, I have had discussions with a number of honourable members, and I will place on the record that we do not have support for that. So, rather than waste the time of this chamber by putting up further amendments which would fail, I think this position is probably the strongest that we are going to be able to deliver. Having said that, I still believe that it provides considerable protections.

I might add that I was very pleased that the Hon. Michelle Lensink took up the government's idea of placing additional conditions on licensed premises that operate between four and seven. It was the government's idea, so we were pleased that the honourable member took us up on that. As I said, we were planning to put this forward, but in a much stronger form. Nevertheless, I think it is something that adds considerably to the bill, and I think it will afford considerable improved protections to those people enjoying a night out in a licensed venue. With those comments, the government will be supporting this amendment.

The Hon. J.M.A. LENSINK: I would like to challenge the minister's assertion that it is stronger if it is in the act than if it is in a disallowable instrument such as a regulation or code of practice. Regulations are quite useful in areas where things change quickly.

The Hon. Ms Franks and I were discussing, some time today, the merits of glass versus polycarbonate. Polycarbonate has been seen in a number of jurisdictions as some great saviour of people being injured through glassing incidents and so forth, but with rapid technological advancements there are some glasses which are superior to polycarbonate and certainly, as the Hon. Ms Franks was referring to, a more enjoyable experience. I do not know about any other honourable members but I would rather have a cold beer on a hot day from a cold glass than out of plastic. That is my personal preference.

If safety is not the issue then I think acts of parliament can take some time to change. A review of this act may be some time away and so to codify issues like that within the statutes does not make it stronger, it just makes it harder to change and is not necessarily relevant to whether it is a stronger measure or not.

Amendment carried; clause as amended passed. Clause 7.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I am advised that on clause 7 we have two amendments in the name of the honourable minister and then a further amendment in the name of the Hon. Ms Lensink.

The Hon. G.E. GAGO: I understand it is consequential. It is to do with management plans. Given that management plans have been removed, I will be withdrawing this amendment.

The ACTING CHAIR: We are now left with amendment No. 2 [Lensink-1].

The Hon. J.M.A. LENSINK: I move:

Page 4, line 25 to page 5, line 1—Delete the clause
This is consequential. It relates to management plans.
Clause negatived.
New clause 7A.

The Hon. G.E. GAGO: I move:

Page 9, after line 22—After clause 29 insert:
29A—Insertion of Part 7A
After Part 7 insert:
Part 7A—Offensive or disorderly conduct
117A—Offensive or disorderly conduct
(1) A person must not behave in an offensive or disorderly manner in licensed premises or in the vicinity of licensed premises.
Maximum penalty: $1,250.
Expiation fee: $160.
(2) This section does not apply to any behaviour involving violence or a threat of violence.


These amendments address administrative matters relating to the licensing court. Clause 7A provides for the use of a seal of the court. 7B provides for an acting licensing court judge for delegation by the licensing court judge to another judge, and for immunity. Clause 7C provides for rules of court. Clause 7D provides for sittings, adjournments and hearings in public or private. Clause 7E allows the court to require a person in custody to be brought before the court, and provides an offence for misbehaviour in the face of the court. Clause 7F provides power for the court to enter and inspect a property.

These amendments arose after I was contacted by Judge Jennings, in his capacity as a member of the Liquor Licensing Court, expressing concern that the licensing court currently lacks the usual express rule-making power conferred upon inferior courts in this state. In addition, His Honour advised me that the act does not currently contain provisions found in similar acts relating to the administration of the court.

The Crown Solicitor has provided advice on these matters and supports the views expressed by Judge Jennings, advising that it is appropriate for amendments to be made to the act to resolve these issues. Provisions similar in effect to those contained in this amendment already appear in similar legislation under which courts occupying a similar place in the judicial hierarchy to the Liquor Licensing Court had been created: for example, the Environment, Resources and Development Court, the Industrial Relations Court and the Youth Court.

These amendments are basically of an administrative nature and we believe they will improve the way the court operates.

The Hon. J.M.A. LENSINK: The opposition supports these amendments as we believe they update the provisions and better reflect the way the Liquor Licensing Court operates.

New clause inserted.

New clauses 7B to 7F inserted.

Clause 8.

The Hon. J.M.A. LENSINK: I move:

Page 5, lines 2 to 11 [clause 8]—Delete the clause.

We seek to delete proposed clause 8 which relates to criminal intelligence, and that is consistent with the position that has been expressed by our legal affairs spokesman, the Hon. Stephen Wade.

In my second reading speech I spoke about how liquor licensees have to jump through a number of hoops and that those standards have increased over time. We believe that criminal intelligence should only be used to target serious and organised crime and that the normal rules of evidence should apply in other instances. That is why we have had this particular amendment drafted.

The Hon. T.A. FRANKS: Mr Acting Chairman, I am happy to indicate that the Greens will be supporting this amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The Hon. Mr Darley.

The Hon. J.A. DARLEY: I will be supporting this amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Minister, do you wish to speak?

The Hon. G.E. GAGO: I am on my feet; if I get the call, I will.

The ACTING CHAIR (Hon. J.S.L. Dawkins): You have the call.

The Hon. G.E. GAGO: The government opposes this amendment. It removes the clause relating to criminal intelligence and is designed to protect informants. Division 6 of the act already contains provisions relating to criminal intelligence. The act already says:

(1) No information provided by the Commissioner of Police to the Commissioner may be disclosed to any person (except the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure) if the information is classified by the Commissioner of Police as criminal intelligence.
Specifically, the act already says:
(2) If a licensing authority—
(a) refuses an application for a licence, the transfer of a licence or an approval, or takes disciplinary action against a person, or revokes or proposes to revoke an approval under Part 4 Division 10A; and
(b) the decision to do so is made because of information that is classified by the Commissioner of Police as criminal intelligence,
the licensing authority is not required to provide any grounds or reasons for the decision other than that to grant the application would be contrary to the public interest, or that it would be contrary to the public interest if the person were to be or continue to be licensed or approved, or that it would be contrary to the public interest if the approval were to continue in force.

The bill simply makes it clear that if the commissioner issues a public order and safety notice based on information that is classified as criminal intelligence, the commissioner is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest if the condition were not imposed or the notice were not issued. The clause is consistent with clauses that already exist in the act, as well as with clauses contained in other acts of parliament, including the Gaming Machines Act 1992 and the Casino Act 1997.

The provision simply ensures that any information which is classified as criminal intelligence and which is provided to the Liquor and Gambling Commissioner by the Commissioner of Police remains confidential. This type of information may form the basis of the Liquor and Gambling Commissioner imposing a license condition to improve public order and safety or issuing a public order and safety notice in respect of a license.

Clause negatived.

Clause 9.

The Hon. J.M.A. LENSINK: I move:

Page 5, lines 12 to 16 [clause 9]—Delete the clause.

This is the first of a number amendments which delete the increase in subsequent penalties in the bill, whereby the penalty for a first offence is $20,000 and for second and subsequent offences, $40,000. I think that, as a statutory concept, is a nonsense. My understanding of the way in which the courts operate is that there is an offence that is set and the courts refer to that offence. It appears to me to be playing politics by having an increased penalty for a second and subsequent offence. I would have thought that the courts, if they were looking at a subsequent offence, would say, for instance, hypothetically, it may be $5,000. They may take that into consideration for a subsequent offence.

It is one of the many measures within this piece of legislation which is aimed at penalising licence holders without looking at all of the other many, many factors. Principally, the one that has been raised is an individual's behaviour and how that leads to safety issues, and also the issue of having more police on the beat. Therefore, we are seeking not to have that included in the legislation.

The Hon. G.E. GAGO: The government rises to oppose this amendment. This amendment removes the provision that proposes to double the maximum penalty for a second or subsequent offence for the selling of liquor without being licensed to do so. It is a serious offence if someone sells liquor without a licence to do so. It is an additional mechanism to deal more strictly with repeat, serious offending against the act and licence conditions.

A number of offences were identified in the act where it would be suitable to increase the maximum penalties for subsequent offending—and, again, these are serious offences—and this is the first of those. It is really a test, I guess, for the others. Increasing the maximum available penalty for subsequent offences obviously will act as an increased deterrent for licensees not to offend against liquor licensing laws.

It is really clear where opposition members are coming from. They are prepared to protect repeat, serious offenders at the expense of members of the public who are easily exploited. We can see where opposition members are coming from. I cannot believe that the Hon. Michelle Lensink can stand in this place and propose to protect repeat, serious offenders. I think it is disgraceful and shameful. As I said, these are serious repeat offences, and I cannot believe that members in this place do not have the guts or the courage to stand up and put forward strong measures to stop serious, repeat offenders. For goodness sake! As I said, it is disgraceful.

The Hon. J.M.A. LENSINK: I ask the minister: if it is such an issue, why has the government not sought that the first offence should be $40,000, rather than having this regime of a first offence and a second or subsequent offence?

The Hon. G.E. GAGO: This is to deter repeat offenders. We know that people err; we believe that the first offence is significant—it is no small measure—but we want to send a clear message that repeat offending is simply not on. I think this absolutely smacks of gutlessness: fancy coming into this place, standing up in here and being prepared to protect repeat serious offenders. It is a disgrace.

The Hon. J.M.A. LENSINK: Notwithstanding that I find the minister's mock outrage somewhat nauseating, could she perhaps outline the cases in which the repeat offenders have been a problem? Does she have cases that she can cite; how many; where has it taken place; what sort of people have been hurt by this apparent offence?

The Hon. G.E. GAGO: I think this is pathetic, absolutely pathetic. I am happy to bring back details, and I will take that on notice. However, I cannot believe that the honourable member is suggesting that she is prepared to support coming down hard on repeat serious offenders only if I can list case examples and the number of examples of the problem. We know that there are repeat offenders. I can certainly say that there are repeat offenders, and I put that on the record.

However, in terms of the numbers I cannot give you those, but I can absolutely assure members in this place that there are repeat offenders and it is a problem. I am happy to bring back the numbers. I think it is pathetic that the honourable member is suggesting that she is not prepared to be tough on repeat serious offenders because I cannot cite the number of cases that occur here in South Australia. It is pathetic and gutless.

The Hon. J.M.A. LENSINK: I am not quite sure how the minister's vitriol is improving the debate at all. I put it that she is the one who is pathetic. This is absolute classic Rann playing politics. If you want to put a penalty in a statute, put the penalty that you think ought to be there. Make it $40,000 and not $20,000. The courts, if there are subsequent offences, will choose—based on the evidence and the case law and all those sorts of things—which offence it ought to be.

As I said in my hypothetical, it might be $5,000 for the first offence and $10,000 thereafter. If it is such a big problem make it $40,000 but it is always, 'We're so tough on these guys. We are going to make this subsequent for other offences. We are going to make it higher because we're going to be in some bidding war.' I mean, I could come in here and say, 'Look, this isn't good enough. Go and make it $80,000.' Woohoo, big deal!

My subsequent question for the minister is: is this an indication (if she is directing the courts that they should have a second or subsequent offence which is higher than the original offence) that she has absolutely no confidence in the courts?

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

The Hon. D.G.E. HOOD: I am sure the Hon. Ms Lensink is not moving this in any attempt to make the offence easier or to disregard the seriousness of the offence that is being committed here, so I do not think the minister is quite right in that. I think the Hon. Ms Lensink moves it because—I cannot speak for her, but I am guessing she thinks the penalty is too harsh, which is completely legitimate and fair enough.

The Hon. J.M.A. Lensink: No, that's not quite right. If you want a penalty you put the penalty.

The Hon. D.G.E. HOOD: Fair enough, but for whatever reason we will not support the amendment.

The Hon. J.M.A. Lensink: It's stupid, absolutely stupid.

The PRESIDENT: Order!

The Hon. T.A. FRANKS: The Greens will also not be supporting the amendment, but we certainly do not support this government's huff and bluster about law and order and coming down hard on mythical crimes. We believe that the minister is here just practising her press conference for tomorrow on the great success of increased law and order in the state of South Australia that will be brought about by this unnecessary amendment.

The Hon. G.E. GAGO: Are you supporting or opposing?

The Hon. T.A. FRANKS: I am opposing, so I was taking the argument on its merits rather than on the rhetoric.

Amendment negatived; clause passed.

Clause 10 passed.

The Hon. G.E. GAGO: Given that there are some administrative matters that need to be sorted, this might be a suitable time to move that progress be reported.

Progress reported; committee to sit again.

[Sitting suspended from 17:58 to 19:49]

Clauses 11 to 15.

The CHAIR: The last time the committee met it made some progress. There are a number of amendments to clause 11. The minister has—

The Hon. G.E. GAGO: I am withdrawing.

The CHAIR: Then it is the Hon. Ms Lensink's amendments to clauses 11 to 15.

The Hon. J.M.A. LENSINK: I move:

Page 5, line 20 to page 6, line 34—Delete the clauses and substitute:

11—Amendment of section 32—Hotel licence
Section 32(1)—delete subsection (1) and substitute:
(1) A hotel licence authorises the licensee—
(a) to sell liquor on the licensed premises for consumption on or off the licensed premises—
(i) on any day (except a Sunday, Good Friday and Christmas Day) between 5 am and midnight; and
(ii) on a Sunday (not being Christmas Day or New Year's Eve) between 11 am and 8 pm; and
(iii) if New Year's Eve is on a Sunday, on that Sunday between 11 am and midnight; and
(iv) on Christmas Day between 9 am and 11 am; and
(v) on New Year's Day between midnight and 2 am; and
(b) if an extended trading authorisation is in force, to sell liquor on the licensed premises for consumption on the licensed premises during the whole or any part of the following hours as is specified in the authorisation:
(i) on any day (except a Sunday, Good Friday, the day after Good Friday, Christmas Day and the day after Christmas Day) between midnight and 5 am;
(ii) on a Sunday (not being Christmas Day or the day after Christmas Day) between midnight and 5 am and between 8 am and 11 am and between 8 pm and midnight;
(iii) if the day after Christmas Day is a Sunday, on that Sunday between 8 am and 11 am and between 8 pm and midnight;
(iv) on Good Friday between midnight and 2 am;
(v) on Christmas Day between midnight and 2 am; and
(c) if an extended trading authorisation is in force, to sell liquor on the licensed premises for consumption off the licensed premises during the whole or any part of the hours between 8 am and 11 am, and between 8 pm and 9 pm, on a Sunday (not being Christmas Day) as is specified in the authorisation; and
(d) to sell liquor at any time on the licensed premises to a lodger for consumption on or off the licensed premises; and
(e) to sell liquor at any time in a designated dining area to a diner for consumption in that area with or ancillary to a meal provided by the licensee in that area; and
(f) to sell liquor at any time in a designated reception area to a person attending a reception for consumption in that area; and
(g) to sell liquor at any time through direct sales transactions (provided that, if the liquor is to be delivered to an address in this State, the liquor is despatched and delivered only during the hours that the licensee is authorised to sell liquor on the licensed premises to a person other than an lodger for consumption off the licensed premises).

12—Amendment of section 33—Residential licence
Section 33(1)(b)—delete paragraph (b) and substitute:
(b) if the conditions of the licence so provide—authorises the licensee to sell liquor at any time for consumption on the licensed premises by persons attending a function at which food is provided or seated at a table, except—
(i) not—
(A) on Good Friday between 2 am and midnight; or
(B) on the day after Good Friday between midnight and 5 am; or
(C) on Christmas Day between 2 am and midnight; or
(D) on the day after Christmas Day between midnight and 5 am; and
(ii) only—
(A) between midnight and 5 am on any day (other than Good Friday, Christmas Day or a Sunday); and
(B) between midnight and 2 am on Good Friday; and
(C) between midnight and 2 am on Christmas Day; and
(D) on a Sunday (not being Christmas Day) between midnight and 5 am and between 8 am and 11 am and between 8 pm and midnight,
to the extent that those hours are specified in an extended trading authorisation that is in force.

13—Amendment of section 34—Restaurant licence
Section 34(1)(c)—delete paragraph (c) and substitute:
(c) if the conditions of the licence so provide—authorises the licensee to sell liquor at any time for consumption on the licensed premises by persons attending a function at which food is provided or seated at a table except—
(i) not—
(A) on Good Friday between 2 am and midnight; or
(B) on the day after Good Friday between midnight and 5 am; or
(C) on Christmas Day between 2 am and midnight; or
(D) on the day after Christmas Day between midnight and 5 am; and
(ii) only—
(A) between midnight and 5 am on any day (other than Good Friday, Christmas Day or a Sunday); and
(B) between midnight and 2 am on Good Friday; and
(C) between midnight and 2 am on Christmas Day; and
(D) on a Sunday (not being Christmas Day) between midnight and 5 am and between 8 am and 11 am and between 8 pm and midnight,
to the extent that those hours are specified in an extended trading authorisation that is in force.

14—Amendment of section 35—Entertainment venue licence
Section 35(1)—delete subsection (1) and substitute:
(1) An entertainment venue licence authorises the licensee—
(a) to sell liquor at any time for consumption on the licensed premises, in a designated dining area, with or ancillary to a meal provided by the licensee; and
(b) to sell liquor on the licensed premises for consumption on the licensed premises at a time when live entertainment is provided on the licensed premises between 9 pm on one day and 5 am on the next except—
(i) not—
(A) on Good Friday between 2 am and 5 am; or
(B) between 9 pm on Good Friday and 5 am on the day after Good Friday; or
(C) between 9 pm on Christmas Day and 5 am on the day after Christmas Day; and
(ii) only between midnight and 2 am on Good Friday to the extent that those hours are specified in an extended trading authorisation that is in force; and
(c) if the conditions of the licence so provide—authorises the licensee to sell liquor at any time for consumption on the licensed premises by persons attending a function at which food is provided or seated at a table except—
(i) not—
(A) on Good Friday between 2 am and midnight; or
(B) on the day after Good Friday between midnight and 5 am; or
(C) on Christmas Day between 2 am and midnight; or
(D) on the day after Christmas Day between midnight and 5 am; and
(ii) only—
(A) between midnight and 5 am on any day (other than Good Friday, Christmas Day or a Sunday); and
(B) between midnight and 2 am on Good Friday; and
(C) between midnight and 2 am on Christmas Day; and
(D) on a Sunday (not being Christmas Day) between midnight and 11 am and between 8 pm and midnight,
to the extent that those hours are specified in an extended trading authorisation that is in force.

15—Amendment of section 36—Club licence
(1) Section 36(1)—delete subsection (1) and substitute:
(1) A club licence authorises the licensee—
(a) to sell liquor on the licensed premises for consumption on the licensed premises—
(i) on any day (except a Sunday, Good Friday and Christmas Day) between 5 am and midnight; and
(ii) on a Sunday (not being Christmas Day or New Year's Eve) between 11 am and 8 pm; and
(iii) if New Year's Eve is on a Sunday, on that Sunday between 11 am and midnight; and
(iv) on Christmas Day between 9 am and 11 am; and
(v) on New Year's Day between midnight and 2 am; and
(b) if an extended trading authorisation is in force, to sell liquor on the licensed premises for consumption on the licensed premises during the whole or any part of the following hours as is specified in the authorisation:
(i) on any day (except a Sunday, Good Friday, the day after Good Friday, Christmas Day and the day after Christmas Day) between midnight and 5 am;
(ii) on a Sunday (not being Christmas Day or the day after Christmas Day) between midnight and 5 am and between 8 am and 11 am and between 8 pm and midnight;
(iii) if the day after Christmas Day is a Sunday, on that Sunday between 8 am and 11 am and between 8 pm and midnight;
(iv) on Good Friday between midnight and 2 am;
(v) on Christmas Day between midnight and 2 am; and
(c) to sell liquor at any time on the licensed premises to a lodger for consumption on or off the licensed premises; and
(d) to sell liquor at any time in a designated dining area to a diner for consumption in that area with or ancillary to a meal provided by the licensee in that area; and
(e) to sell liquor at any time in a designated reception area to a person attending a reception for consumption in that area; and
(f) if the licensing authority is satisfied that members of the club cannot, without great inconvenience, obtain supplies of packaged liquor from a source other than the club and includes in the licence a condition authorising the sale of liquor under this paragraph—
(i) to sell liquor on the licensed premises to a member of the club for consumption off the licensed premises on any day (except Good Friday and Christmas Day) during the hours that the licensee is authorised to sell liquor on the licensed premises to a person other than a lodger for consumption on the licensed premises; and
(ii) to sell liquor at any time through direct sales transactions to members of the club (provided that, if the liquor is to be delivered to an address in this State, the liquor is despatched and delivered only between the hours of 8 am and 9 pm and not on Good Friday or Christmas Day).
(2) Section 36(2)—delete subsection (2)

If I could explain to honourable members, I cannot take credit it for all the text that is in this; obviously, parliamentary counsel has drafted it. It is a consolidation of the minister's amendments and my amendments to the minister's amendments. The minister's amendment No. 7, which deals with sections 32 to 36 of the Liquor Licensing Act, is consequential. There are some consolidations of the various licence classes within the act, which is a significant rewrite and which makes it easier to understand. In addition, these amendments include my amendments which would have prevented the 4am to 7am break in trade.

The Hon. G.E. GAGO: The government rises to support this amendment. It is basically an administrative matter, given that we have conceded that the mandatory break in trade is not going to be supported. I just would like to acknowledge the remarkable work of parliamentary counsel and the amazing work that they have done to assist us in a wide range of very complex sets of amendments. They have certainly made all our lives much easier through their efforts.

The CHAIR: They are different clauses, but if there is agreement on them all, it will fast track matters.

Amendments carried; clauses as amended passed.

Clause 16 passed.

Clause 17.

The Hon. J.M.A. LENSINK: I move:

Page 7, lines 1 to 8—Delete subclauses (1) and (2) and substitute:
(1) Section 40(1)—delete subsection (1) and substitute:
(1) A special circumstances licence authorises the licensee in accordance with the terms and conditions of the licence—
(a) to sell liquor for consumption on or off the licensed premises—
(i) on any day (other than a Sunday) between 5 am and midnight; and
(ii) on a Sunday between 11 am and 8 pm; and
(b) if an extended trading authorisation is in force, to sell liquor for consumption on or off the licensed premises during the whole or any part of the following hours as is specified in the authorisation:
(i) on any day (other than a Sunday, Good Friday, the day after Good Friday, Christmas Day or the day after Christmas Day) between midnight and 5 am;
(ii) on a Sunday (not being Christmas Day or the day after Christmas Day) between midnight and 11 am and between 8 pm and midnight;
(iii) on Good Friday between midnight and 2 am;
(iv) on Christmas Day between midnight and 2 am;
(v) if Christmas Day or the day after Christmas Day is a Sunday, on that Sunday between 8 pm and midnight; and
(c) to sell liquor at any time in a designated dining area to a diner for consumption in that area with or ancillary to a meal provided by the licensee in that area; and
(d) to sell liquor at any time to a lodger for consumption on or off the licensed premises.

This is consequential and applies, from what I understand, to special circumstances licensing.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Page 7, line 12 [inserted subsection (5)]—Delete: 'or management plans' and substitute:

'(and that classification may be varied by the Commissioner from time to time)'

This is consequential to previous amendments to delete references to management plans.

Amendment carried; clause as amended passed.

Clause 18.

The Hon. J.M.A. LENSINK: I move:

Page 7, line 17 [inserted subsection (6)]—Delete 'or management plans' and substitute:

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